Citation Nr: 1806578 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 16-05 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss. 2. Entitlement to service connection for a right ankle disorder. 3. Entitlement to service connection for a left ankle disorder. 4. Entitlement to service connection for a right hip disorder. 5. Entitlement to service connection for a left hip disorder. 6. Entitlement to service connection for a lumbar spine disorder. 7. Entitlement to service connection for an anxiety disorder. 8. Entitlement to service connection for erectile dysfunction. 9. Entitlement to service connection for a keloid scar. 10. Entitlement to service connection for pseudofolliculitis barbae. 11. Entitlement to service connection for bilateral pes planus. 12. Entitlement to service connection for a left knee disorder. 13. Entitlement to service connection for a right knee disorder. 14. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Douglas Sullivan, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L Zadora, Senior Counsel INTRODUCTION The Veteran had active duty service from June 1976 to June 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decision dated in April 2012 and September 2016 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In November 2017, the Veteran testified before the undersigned Veterans Law Judge. A hearing transcript has been associated with the record. The Board notes that, subsequent to the January 2016 statement of the case, the Veteran submitted additional evidence in support of his appeals, to include August 2017 statements from his sisters and his father as well as a September 2017 opinion from Dr. D.C. As the Veteran's substantive appeal was received in January 2016 and agency of original jurisdiction (AOJ) consideration of this evidence has not been explicitly requested, a waiver of AOJ consideration is not necessary. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, section 501. Therefore, the Board may properly consider such newly received evidence. 38 C.F.R. § 20.1304 (2017). The Board also notes that the Veteran's claim for service connection for flat feet was initially denied in a January 2006 rating decision while a petition to reopen the claim was denied in a March 2009 rating decision. In addition, the claim for service connection for tinnitus was denied in a December 2009 rating decision and the claim for service connection for a left knee disorder was denied in an April 2010 rating decision. Thereafter, his petitions to reopen such claims were denied in the April 2012 rating decision on appeal. However, VA regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement that new and material evidence must first be received. 38 C.F.R. § 3.156(c) (2017). In the instant case, a December 2005 Memorandum made a formal finding of unavailability of service records and indicated that the Veteran's service treatment records were unavailable for review. The January 2017 supplemental statement of the case indicated that the Veteran's service treatment records were received on January 30, 2008, and January 22, 2013. Copies of the available service treatment records, namely the March 1976 service entrance examination and the March 1976 Report of Medical History, were dated stamped as received on February 11, 2011. Moreover, the April 2010 rating decision indicated that the Veteran's service treatment records had not been obtained. It is unclear from the record when the service treatment records were actually associated with the record after the issuance of the January 2006 rating decision. This additional evidence is relevant to the matters under consideration as it could, potentially, document that the onset of disabilities during service. Therefore, such issues are considered on a de novo basis and have been characterized as such as shown on the first page of this decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for tinnitus, a right knee disorder, and a left knee disorder are REMANDED to the AOJ. FINDINGS OF FACT 1. During the November 2017 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the issues of whether new and material evidence had been received to reopen a claim for service connection for bilateral hearing loss, service connection for a right ankle disorder, service connection for a left ankle disorder, service connection for a right hip disorder, service connection for a left hip disorder, service connection for a lumbar spine disorder, service connection for an anxiety disorder, service connection for erectile dysfunction, service connection for a keloid scar, and service connection for pseudofolliculitis barbae. 2. Bilateral pes planus was not noted in the service entrance examination and there is clear and unmistakable evidence that the Veteran entered active duty with preexisting bilateral pes planus. 3. The clear and unmistakable evidence does not show that the preexisting bilateral pes planus did not undergo a permanent worsening beyond normal progression during the Veteran's active service. 4. The Veteran's bilateral pes planus was aggravated by his service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal regarding whether new and material evidence had been received to reopen a claim for service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of the appeal for service connection for a right ankle disorder have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal of the appeal for service connection for a left ankle disorder have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 4. The criteria for withdrawal of the appeal for service connection for a right hip disorder have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 5. The criteria for withdrawal of the appeal for service connection for a left hip disorder have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 6. The criteria for withdrawal of the appeal for service connection for a lumbar spine disorder have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 7. The criteria for withdrawal of the appeal for service connection for an anxiety disorder have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 8. The criteria for withdrawal of the appeal for service connection for erectile dysfunction have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 9. The criteria for withdrawal of the appeal for service connection for a keloid scar have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 10. The criteria for withdrawal of the appeal for service connection for pseudofolliculitis barbae have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 11. The criteria for service connection for bilateral pes planus have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 5103, 5103(A) (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawals The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R.§ 20.204 The Veteran, through his attorney, withdrew from appeal the following issues during the November 2017 hearing: (1) whether new and material evidence had been received to reopen a claim for service connection for bilateral hearing loss; (2) service connection for a right ankle disorder; (3) service connection for a left ankle disorder; (4) service connection for a right hip disorder; (5) service connection for a left hip disorder; (6) service connection for a lumbar spine disorder; (7) service connection for an anxiety disorder; (8) service connection for erectile dysfunction; (9) service connection for a keloid scar; and (10) service connection for pseudofolliculitis barbae. The hearing transcript has been reduced to writing and is of record. See Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993). Hence, there remain no allegations of error of fact or law for appellate consideration with regard to these issues. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they must be dismissed. II. Bilateral Pes Planus As the Board's decision to grant service connection for bilateral pes planus on the merits herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and the implementing regulations. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Service connection may be granted for a disability which is the result of disease or injury incurred or contracted or for aggravation of a preexisting injury incurred in line of duty in service. 38 U.S.C. § 1110. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities such as arthritis are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. A veteran is presumed to have entered service in sound condition with respect to his or her health except as to defects, infirmities, or disorders "noted" on service entrance. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Where no defect, infirmity, or disorder was noted on service entrance, the burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence that a disability existed prior to service. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (citing 38 U.S.C. § 1153). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his flat feet preexisted his service and were aggravated by service. During a November 2017 hearing, the Veteran testified that he had flat feet as a child and that he had sought treatment for his feet during service. The March 1976 service entrance examination found that the Veteran's feet were normal and the Veteran denied that he now had, or that he had ever had, foot trouble in an accompanying Report of Medical History. These are the only available service treatment records. An August 2017 statement from the Veteran's sister indicated that the Veteran had "always" had a problem with flat feet, that his flat feet changed his posture and the way that he moved, that he had been hospitalized for two months during service for fallen arches and that he could no longer participate in particular physical activities after service due to his flat feet. An August 2017 statement from another of the Veteran's sisters recalled that the Veteran had to wear "special shoes" until he was in the first grade, that he would be bedridden when his arches fell as a child and that he had limited his current physical activity due to the condition of his feet. She also stated that she was surprised that he was permitted into the service due to the condition of his feet. During his November 2017 hearing, the Veteran testified that he had flat feet when he was born and that they had been flat all of his life. Therefore, despite the March 1976 service entrance examination finding that the Veteran's feet were normal, there is clear and unmistakable evidence that bilateral pes planus did preexist service. The remaining question is whether there is also clear and unmistakable evidence that the preexisting bilateral pes planus was not aggravated by service. As stated above, service treatment records other than the March 1976 service entrance examination and March 1976 Report of Medical History are not available. In a September 2017 opinion, the Veteran's private physician opined that his diagnosed bilateral pes planus was at least as likely as not aggravated beyond its natural progression by his service. The physician reasoned that the Veteran had a complete collapse of the medial column on weight-bearing with degenerative changes secondary to a congenital pes planus deformity. The physician further reasoned that the Veteran's duties required running, jumping, marching and climbing, which all would aggravate his deformity and cause changes that are present today. An August 2016 opinion from Dr. G.G., a private podiatrist, also indicated that it was at least as likely as not that the Veteran's bilateral pes planus condition was aggravated beyond its normal progression reasoning that the Veteran's military job responsibilities resulted in the aggravation and progression of his flatfoot deformity. In an April 2016 Disability Benefits Questionnaire (DBQ) report, Dr. G.G. opined that the Veteran's flatfoot complaints with episodic flare-ups causing pain were a progression of the deformity and that the Veteran had reported an increase in foot/leg complaints with the continued use of military boots. The Board finds that this opinion and the other evidence of record does not clearly and unmistakably establish that the Veteran's bilateral pes planus was not aggravated by his service. Therefore, the VA is unable to rebut the presumption of soundness. As the presumption of soundness has not been rebutted, the claim is one for service connection. See Wagner, 370 F.3d 1089. The Board finds that the Veteran's bilateral pes planus was incurred in service. Both the September 2017 opinion from Dr. D.C. and the August 2016 opinion from Dr. G.G. found that it was at least as likely as not that the Veteran's diagnosed bilateral pes planus was aggravated by his service. Although these opinions contain only a brief rationale, the Board notes that it is prohibited from developing additional evidence for the purpose of obtaining evidence against a claimant's case. See Mariano v. Principi, 17 Vet. App. 305 (2003). A December 2015 VA examiner opined that the record did not establish a nexus between the Veteran's active military service and his current foot conditions as the records are silent for a pes planus condition prior to 2005 and the first clinical record of pes planus was 25 years after service. However, this examiner did not consider that the majority of the Veteran's service treatment records were unavailable nor did she consider the statements from the Veteran's sisters and father. This opinion is therefore being afforded little probative weight. Given the evidence of record and resolving all doubt in the Veteran's favor, the Board finds that his bilateral pes planus was aggravated by his service. Consequently, service connection for bilateral pes planus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Whether new and material evidence had been received to reopen a claim for service connection for bilateral hearing loss is dismissed. Service connection for a right ankle disorder is dismissed. Service connection for a left ankle disorder is dismissed. Service connection for a right hip disorder is dismissed. Service connection for a left hip disorder is dismissed. Service connection for a lumbar spine disorder is dismissed. Service connection for an anxiety disorder is dismissed. Service connection for an erectile dysfunction is dismissed. Service connection for a keloid scar is dismissed. Service connection for pseudofolliculitis barbae is dismissed. Service connection for bilateral pes planus is granted. REMAND VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69(1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). For below noted reasons, the Board finds that an addendum opinion is necessary in order to determine the nature and etiology of the Veteran's claimed tinnitus, right knee disorder and a left knee disorder. The Veteran contends that his tinnitus is the result of his in-service noise exposure from howitzers as a cannonner. An October 2009 VA audiologist opined that the Veteran's complaints of tinnitus was not due to his military acoustic trauma as there were no complaints of tinnitus found in the service medical records and his description was not considered chronic and was a common phenomenon in normal hearing persons. However, the Veteran's service treatment records outsides of his March 1976 service entrance examination and March 1976 Report of Medical History are unavailable. This opinion is therefore afforded no probative weight. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). A December 2015 VA audiologist noted that audiology testing was unable to obtain reliable responses by the Veteran to determine his current level of hearing thresholds and that his tinnitus did not occur during his military career as he had denied tinnitus in June 2008 and March 2009. However, the Veteran testified during his November 2017 hearing that he did not know what tinnitus was until another veteran told him and that he began experienced tinnitus symptoms towards the end of his service. In addition, it is not clear from the current opinion why audiology testing is necessary to provide an etiology opinion for tinnitus. Therefore, an addendum opinion should be obtained on remand. With regards to the claimed right and left knee disorders, the Veteran contends that they are the result of an in-service fall. In the alternative, he alleges that his right and left knee disorder was caused or aggravated by his now service-connected bilateral pes planus. A December 2015 knee VA examination report found both of the Veteran's knees to be normal and that subjective complaints of knee pain without objective findings to support a knee diagnosis. A September 2016 VA treatment note indicates that the Veteran's right knee was status-post right arthroscopic knee surgery and an April 2016 VA treatment note indicates that knee X-rays had been ordered. In light of the recent VA treatment records suggesting that the Veteran may have a diagnosed knee disability, a new VA examination with an opinion should be obtained. In addition, the Veteran should be given an opportunity to identify any records relevant to the claims on appeal that have not been obtained. Thereafter, all identified records should be obtained. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include VA treatment records from the dated from January 2017 to the present, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford her an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A (b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining any outstanding records, return the claims file, to include a copy of this remand, to the December 2015 examiner for an addendum opinion. If the examiner who drafted the December 2015 report is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. With respect to any diagnosed tinnitus, the examiner should determine whether it is at least as likely as not (a 50% or higher degree of probability) that any current tinnitus is related to acoustic trauma during active duty service, specifically exposure from artillery guns as a cannoner. In offering such opinion, the examiner should consider the Veteran's statements regarding the incurrence of his tinnitus. The examiner must provide a complete rationale for all opinions and conclusions reached. 3. The Veteran should be afforded a VA examination to determine the nature and etiology of his claimed right and left knee disorders. The examiner should review the record and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The examiner is asked to furnish an opinion with respect to the following questions: a) With regard to the claimed right and/or left knee disorder, the examiner should identify all diagnosed disability(ies) currently present. b) The examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such right and/or left knee disorder had its onset during any period of service, or is otherwise related to such period of service, to include any in-service fall. c) The examiner should offer an opinion as to whether it is it at least as likely as not (50 percent or greater probability) that any such right and/or left knee disorder was caused OR aggravated by the now service-connected bilateral pes planus? In offering such opinion, the examiner should consider the Veteran's statements regarding the incurrence of his knee disorders. The examiner must provide a complete rationale for all opinions and conclusions reached. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his attorney should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs